We can all readily recognise that the discretion not to prosecute is vital. Without it, we would live in a jobsworth society and most of us would long since have lost our driving licences. But, while the {DPP’s attempts to create a consistent and comprehensive set of prosecution guidelines on social media: http://www.scl.org/site.aspx?i=ne27760} are to be applauded, I am not comfortable with too much discretion being left in the hands of the state nor with too much uncertainty about what sort of conduct amounts to criminal behaviour that must lead to court action. We need better law.
Lilian Edwards has raised the bar in this debate to a high level in her {piece on this: http://www.scl.org/site.aspx?i=ed28102} but, while I agree with much of what she says and strongly recommend that you read her piece, I differ on both the level of problem and the solution.
I feel that there is a wholly unjustified feeling that cyber-comments are more strictly controlled than casual comments made in the real world {i}publicly{/i}. If you are daft enough to wander the streets of Huddersfield the day after a number of soldiers have been killed in Afghanistan, shouting obscenities and saying that all soldiers deserve to go to hell, you might be glad of the police arresting you because the alternative forms of justice might be worse. If you were to loudly declare in your local park during the Olympics that Tom Daley was anything other than perfect, you might be in trouble – and you would certainly be liable to prosecution if you shouted awful things to him and his nearest and dearest. Free speech in the real world is not totally free.
The fact that the Communications Act 2003, s 127 was very obviously abused in the Paul Chambers case does not turn every foul-mouthed idiot into a freedom fighter. The widespread ignorance of the distinction between truly private comment and, eg, tweets to followers is a complication that needs to be addressed by education not petitions seeking absolution for any inexcusable behaviour.
In fact, it could be argued that the s 127 test that something must be ‘grossly offensive’ is a weaker test than that which applies under the {Public Order Act 1986, s 4A: http://www.legislation.gov.uk/ukpga/1986/64} and that there is thus greater freedom online than in the real world (though I accept that, though much used, s 127 is not the only provision available). My personal preference is for a tailored law on online comments not dissimilar to s 4A rather than something like s 127 which, as Lilian Edwards rightly points out, was not really designed for these sorts of situations.
My view is that the whole issue needs to be referred to the Law Commission – it is what it is for – with a brief that (a) the law online should as closely as possible reflect the law on offline comments and (b) that the Commission moves a good deal more quickly than usual. There is a strong argument that the effect of {i}Chambers v DPP{/i} is to create an unworkable definition of public telecommunications network (see Watson and Ingram on the SCL site {here: http://www.scl.org/site.aspx?i=ed27370}).
It would be good if they could find an equivalent of the real world warning, where many a crisis and prosecution has been averted by an intervention that amounts to ‘if you don’t shut up, we’ll arrest you’. Perhaps YouTube and Twitter could develop technology that pauses, as it does when you are about to thoughtlessly retweet, and says ‘Do you really want to say that? Remember your mother and the police might read this.’
The DPP’s suggestion may give us a necessary quick fix but just tinkering with prosecution guidelines is not enough.
